• 12
  • May
    2010

Florida has an unusually large number of people who are elderly and frail. Unfortunately, this also means that Florida has an unusually large number of people who try to prey on those elderly residents by using fear and fraud to take hard-earned property.

What can be done when an elderly person has made a transfer of property that, on its face, seems to be valid, but does not pass the "smell test." Often these inter vivos transfers (meaning transfers made during a person's lifetime), or transfers made by changing the person's will, are not discovered by the transferor's heirs until the transferor is dead.

Suddenly, heirs who were expecting a sizable bequest find that property has been suspiciously siphoned away.

Heirs who suspect that they have been defrauded can often have the transfer reversed as the product of undue influence. So how do rightful heirs prove undue influence?

Fraud has been around for a long time. In 1936, the Florida Supreme Court said that:

"To constitute undue influence the mind ... must be so controlled or affected by persuasion or pressure, artful, or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but ... subject to the will or purposes of another. ... The rule seems to be well settled that undue influence justifying the setting aside of a will, deed, or other contract must be such as to dethrone the free agency of the person making it and rendering his act the product of the will of another instead of his own."

In other words, Grandfather didn't know or understand what he was signing, or was convinced or pressured to transfer his property because of lies.

I'll have more to say about contested wills and undue influence in my next blog post.